The Practice Blog

Merrilee
Rasmussen attended the Canadian Bar Association’s annual nationalconference on Aboriginal Law, which was held this year in Iqaluit, Nunavut. The
theme of the conference was “Nation-Building under Land Claims Agreements,
Treaties and Self-Government Agreements”. The conference was a great success,
with engaging presentations by a number of notable experts, such as Grand Chief
Matthew Coon Come, Tom Berger, Paul Okalik, Peter Hutchins, Bob Rae and Sheila
Fraser, and many others.

Merrilee
moderated a panel on “Implementation: What constitutes success or failure?”.
She also participated as a panellist in the closing session discussing
“Lessons Learned”. Merrilee’s comments focussed on the duty to consult and the
honour of the Crown. She noted that to date we have seen the impact of the duty
to consult in judicial decisions relating to treaty negotiation and
implementation: It is not honourable to negotiate for so long that rights are
destroyed (so asserted rights must be protected in the interim); nor is it
honourable to negotiate a treaty that cannot or will not be implemented (so
obligations undertaken must be interpreted broadly and implemented diligently);
and it is not honourable to pretend to set up an implementation process that
will not be supported (so human and financial resources to provide for the
possibility of successful implementation must be provided). The requirement
that the Crown deal honourably with Aboriginal peoples also implies openness
and frankness in negotiations, the necessity of negotiating from interests and
not positions, and implementation of negotiated arrangements in good faith
without delay. Most importantly, negotiations between the Crown and
Aboriginal peoples must be based on recognition and respect: recognition of
Aboriginal rights and respect for Aboriginal governments as equal partners in
the negotiation.

In
2015 the conference will be held in Cape Breton, at the Membertou First Nation
Trade and Convention Centre.

The Federal Court’s decision in Daniels v. Canada, released on January 8, 2013 is interesting in
that it declares what everyone knew all along: Métis and non-status Indians are “Indians” within
the meaning of s. 91(24) of the Constitution Act, 1867. According to Mr. Justice Phelan, it took
14 years of litigation and $5 or $6 million of the people’s money for the federal government to be
told what the Minister of Indian Affairs had written in a letter to the Institute for Research on
Public Policy in 1985.

A friend and former federal negotiator once told me privately that the federal government hadn’t
won a significant Aboriginal rights case since 1973. He was referring to the Supreme Court’s
decision in that year in the case of Calder. On that occasion, three judges of the Supreme Court
held that the Aboriginal title of First Nations in British Columbia had not been extinguished, and
three held that it had. The seventh judge decided the case on an unrelated technical point. My
friend was, and remains, correct. The federal government has lost again, but the federal
government has no shame and lots of our money, and an appeal is under way. This is also
convenient for federal government politicians, as now they don’t have to answer questions about
anything because “the matter is before the courts”.

It should be noted that the federal government has the power to refer an issue directly to the
Supreme Court of Canada, but it refused to do so in this case. In fact, the government argued
that Mr. Daniels action for a declaration about the constitutional status of the Métis should have
been dismissed because it was in effect an “impermissible private reference”. A direct reference
would have seen this issue settled years ago, for a fraction of the cost.

What is disturbing about these cases is that the federal government and its lawyers refuse to
acknowledge anything where Aboriginal peoples and their rights are involved. This lack of
recognition and co-operation extends even to the most mundane of technical points. For
example, in the Daniels decision, the judge commented on the government’s refusal to
acknowledge and consent to the receipt by the Court of documents that came from its own
archives:

"Leslie had to be called by the Plaintiffs because the Defendants would not admit that
a significant number of government documents were in fact government documents.
The Defendants’ position was wholly untenable and just a further example of the
extent to which the Defendants would proceed in attempts to frustrate this litigation."

Forcing a party in litigation to formally prove documents that will clearly end up being
admissible is a waste of time and money. Parties in legal proceedings should focus on the issues
that are actually in dispute, not be sidetracked by trivial technicalities. One wonders how the
federal government justifies litigation by sharp practice as upholding the honour of the Crown in
its relationships with Aboriginal peoples. Of course, that’s just another series of cases that they
have also unsuccessfully litigated.

The Federal Court in Daniels was also critical of the federal government’s argument that it could
define the term “Indian” through its own legislation. The definition contained in the Indian Act excludes the Métis (as well as other non-status Indians). As the judge said:

"That proposition would allow the federal government to expand and contract their
constitutional jurisdictions over Indians unilaterally.

It is a settled constitutional principle that no level of government can expand its
constitutional jurisdiction by actions or legislation. The federal government may wish
to limit the number of Indians for which it will grant recognition under the Indian Act
or other legislation but that does not necessarily disqualify such other Indians from
being Indians under the Constitution."

When a court says, “it is a settled constitutional principle” it’s code for, “how can you make such
a ridiculous argument?” One doesn’t have to think too long and hard about the point to realize that
if a government can define its jurisdiction through ordinary legislation that it alone enacts, then the
constitution isn’t worth the paper it’s printed on because it can be changed on a whim. In other
words, the federal government based its case at least in part on an argument that it should have been
embarrassed to make.

But the situation is worse than that. The federal government bases its policies in relation to
Aboriginal peoples on a similar argument. It argues that anything that has to do with Aboriginal
peoples that falls under a provincial area of jurisdiction is a provincial responsibility, and not federal
under s. 91(24). So, it says education and child and family services, for example, are provincial
matters. By this logic, then, with one exception, s. 91(24) has no content - because everything that
isn’t already listed under s. 91 as a federal power is listed under s. 92 as a provincial power. The
exception is in relation to Indians on reserves. Here, the federal government will admit to its
responsibility, in spite of the fact that in 1983 the Supreme Court of Canada said, in a case called
Four B Manufacturing, in effect, “an Indian isn’t any less an Indian because he lives off a reserve
nor any more an Indian because he lives on a reserve”:

Section 91.24 of the British North America Act, 1867 [now the Constitution Act,
1867] assigns jurisdiction to Parliament over two distinct subject matters, Indians and
Lands reserved for the Indians, not Indians on Lands reserved for the Indians. The
power of Parliament to make laws in relation to Indians is the same whether Indians
are on a reserve or off a reserve. It is not reinforced because it is exercised over
Indians on a reserve any more than it is weakened because it is exercised over Indians
off a reserve.

In that case and others, the Court held that there are two areas of jurisdiction in s. 91(24), “Indians”
and “lands reserved for the Indians”. Through policy this time, not even legislation, the federal
government continues to act as if there was only one head of power under s. 91(24), that being
“Indians on their lands”.

The bottom line here is that the federal government works hard to find clever arguments to defeat
the rights of Aboriginal peoples. It makes litigation as difficult and as expensive as possible for
Aboriginal peoples in order to deter them from taking action to protect their legal rights. It is more subtle, but just as effective as the pre-1951 provision of the Indian Act that actually prohibited First
Nations from hiring lawyers to advance their claims. Instead of expending human and financial
resources on resisting the recognition and protection of constitutionally guaranteed rights, it makes
more sense to put all those resources to positive use, to find the legal means and mechanisms to
actually accomplish positive change for Aboriginal peoples and stop fighting

Mr. Daniels didn’t live long enough to see the result of his action. His grandchildren may not live
long enough to see the end of it in the Supreme Court of Canada. All of us are the losers.

Postscript

On March 7, 2013 the Supreme Court of Canada released its decision in the Manitoba MétisFederation Inc. v. Canada. This is another victory for the Métis who argued that the federal
government breached its fiduciary obligations to the Métis people in its implementation of the land
provisions of the Manitoba Act, by which Manitoba entered Confederation and the land claims of
the Métis were addressed. The Supreme Court held that the land provisions of the Manitoba Act,
did not give rise to fiduciary obligations, but were a solemn constitutional obligation aimed at
reconciling Aboriginal interests with Crown sovereignty and thus engaged the honour of the Crown.
Claims based on the honour of the Crown are not barred by statutory limitation periods or the
equitable doctrine of laches (delay). The Manitoba Métis were therefore entitled to a declaration
from the court that the transfer of land to Métis children as required by s. 31 of the Manitoba Act,
was not carried out with diligence as required by the honour of the Crown. The Court also
commented that equitable doctrines could not defeat the requirement to carry out a constitutional
obligation.

At the present time, in order to prevent use of trademarks in Internet domain names by unauthorized users, trademark owners had to resort to the usual types of remedies.The first step was generally to send a cease and desist letter demanding that the infringer quit using the trademark and hand over ownership of the domain name.If there was no response, the trademark owner could then commence an action under the Uniform Dispute Resolution Policy administered by ICANN (Internet Corporation for Assigned Names and Numbers).ICANN is the agency that manages the Internet domain name system.

Starting March 26, 2013, ICANN is launching a new Trademark Clearinghouse to help brand name owners proactively protect their trademarks as new generic Top-Level Domain Names (gTLDs) become available in mid-2013.

Generic Top-Level Domains are those part of web addresses such as .com, .net, and .org that everyone who uses the Internet is familiar with. Right now there are 20 or so gTLDs, but with the opening up of the TLD system to other names, there could literally be hundreds as more and more businesses take advantage of the new expanded gTLD naming system.

The purpose of the Clearinghouse will be to prevent the unauthorized use of registered trademarks in the second level of the new gTLDS (e.g., www.yourbrandname.gtld). It is anticipated that this new system will reduce the number of domain names created that infringe existing trademarks.

In order to take advantage of the Clearinghouse, trademark owners will submit trademark data along with an annual fee. ICANN will begin accepting trademark data starting March 26, 2013. In exchange, the trademark owner will have access to two services that will assist in protecting their marks, a Sunrise Service and a Trademark Claims Service.

The Sunrise Service provides an initial period of at least 30 days before domain names are offered to the general public. This provides a safeguard against others using your registered trademark as part of a domain name before you are able to register your own website with the name.

The Trademark Claims Service provides warnings to both trademark owners and domain name registrants that a possible infringement exists.

Both services will greatly simplify the chore of regularly surveying for trademark infringers, which is required in order to maintain trademark rights. This is because, under the common law, failure to take prompt action against infringements can lead to the loss of trademark rights, and the finding by the courts that your mark has become generic. There are several cases of famous trademarks that became generic through lack of vigilance with respect to their unauthorized use, including such well-know names as Cellophane and Escalator.

The fees are based on a per trademark basis and are currently $150/1 year; $435/3 years; and $725/5 years, all in US dollars.

The Clearinghouse has recently published its guidelines regarding eligibility.

For more information or to discuss the impact of this new service, feel free to contact Colin.

Last week’s decision by the Supreme Court of Canada in a
case called Saskatchewan (Human Rights Commission) v. Whatcott upheld
the constitutionality of the so-called “hate speech” provisions of TheSaskatchewan Human Rights Code, although finding a phrase in the Code to be
invalid. The case makes a distinction between speech that is only
offensive and that which incites hatred. The Supreme Court held that this
limitation on free speech is demonstrably justifiable in a free and democratic
society under s. 1 of the Charter.

Whatcott had been distributing flyers equating homosexuals with carriers of disease,
sex addicts, pedophiles and predators who would proselytize vulnerable children
and cause their premature death. The court said these flyers would
objectively be seen as exposing homosexuals to detestation and vilification.
They also expressly called for discriminatory treatment of those of same-sex
orientation. As is the case with the law of discrimination generally, it
doesn’t matter what Whatcott intended by the distribution of these
flyers. The important question to be asked is what is their likely
effect.

Recent media reports state that Whatcott continues to distribute the flyers and
has explicitly said he will not comply with the Court’s decision. Some
argue that we should ignore him and he'll go away; however, if there are no
consequences the law is meaningless.

For an interesting and more comprehensive article on the legal issues involved,
see Ross Mcnab's perspective.